1 Popular Sovereignty

1.1 Introduction

Historical background

The modern meaning of sovereignty (but not popular sovereignty) was
introduced by Jean Bodin in 1576. According to the New Columbia Encyclopedia,
sovereignty is "the supreme authority in a political community".

The origin of popular sovereignty, on the other hand, goes most directly back
to what is called the social contract school of the mid 1600s to the mid 1700s.
Popular sovereignty is the notion that no law or rule is legitimate unless it
rests directly or indirectly on the consent of the individuals concerned.

Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean-Jacques Rousseau
(1712-1778) were the most important members of the social contract school. They
all postulated that the nature of society, whatever its origins, was a
contractual arrangement between its members. The reason men entered society was
to protect themselves against the dangers of the "state of nature".
But, their theories differed markedly in other respects.

Hobbes in Leviathan, published 1651, claimed that the first and only task of political society was to name
an individual or a group of individuals as sovereign. This sovereign would then
have absolute power, and each citizen would owe him absolute obe­dience. Hobbes
concept meant that popular sovereignty only existed momentarily. In modern terms
we might say that it consisted of "one man, one vote, once".

Locke in his writings e.g. Second Treatise of Government, published 1690, claimed
as Hobbes before him, that the social contract was permanent and
irrevocable, but the legis­lative was only empowered to legislate for the
public good. If this trust was violated, the people retained the power to
replace the legislative with a new legislative. It is unclear whether Locke
deposited sovereignty in the people or in the legislative. Though he was less
absolute than Hobbes, he clearly didn't intend popular intervention to be
commonplace. If anything, Locke's vision is probably closer to the British view
of Parliamentary sovereignty.

Rousseau (e.g. The Social Contract, 1762) claimed that laws enacted by the legis­lature could only address
the common good of the society's members and they could only extend the same
rights or obligations to all citizens. Rousseau, however, didn't elaborate on
what would happen if these conditions were violated, but he did propose
mechanisms to find out what the "general will" was and he did see the
legislative powers as vested in the people itself.

Thus there was a development in political theory from the very limited role
played by the people in Hobbes' theories, to the more significant popular
sovereignty of Rousseau.

Rule by consent in other fields of thought

Ideas and thoughts legitimizing the rule of consent also may be found in many
religious tracts. The Bible sums it up quite nicely and again not
coincidentally: "Love your neighbor as yourself." (Mark 12, 31), and
"And as you would like that men would do to you, do exactly so to
them." (Luke 6,31). In other words; since you like to control your life,
let others control theirs. The implied promise is that the individual and
society will be happy and prosperous to the extent that this advice is followed
and the people is given the maximum amount of individual and group liberty and
sovereignty.

Contemporary psychologists as well, in their search for the sources of
happiness and depression, have found the same result. Happiness, confidence and
success are closely related to a belief in one's ability to influence one's own
fate. Depression and failure are related to a feeling of inability to control
one's own life, to a feeling of being controlled.

To most people these truths seem so self-evident that they need not be
argued. However, more than 200 years after the American Declaration of Independence the
individual "pursuit of happiness" that seemed self-evident to its framers, and
that still seems self-evident to ordinary people today is still met, as it was 200
years ago, by enormous resistance among most of the political elite.

1.2 A contemporary definition of popular sovereignty

According to the New Columbia En­cyclopedia, sovereignty is "the
supreme authority in a political community". It is that individual or group
that has absolute power to make law. The term popular sovereignty is supposed to
mean that this ultimate power belongs to the people, but what is the most common
contemporary interpretation? Most Western democracies claim to base their
government on popular sovereignty, but in reality the people has little ultimate
authority short of revolution. Most decisions, even fundamental decisions, are
left to the legislatures. It is usually the legislature that controls the
constitution, the most basic instrument of government, and the extent of popular
authority is usually at this body’s discretion. Even where popular consent is
required, the legislature usually has the sole authority to propose amendments.
In reality this means that sovereignty is most commonly placed in the
legislature. It is this body, rather than the people, that has the ultimate
power to make law.

On the other hand, in order for a government to be truly popular it would
have to provide the people with at least as much authority as any other body,
and in addition a right to overrule that body. This is how I define
popular sovereignty and it is this definition that forms the basis for the
proposed governmental system.

A modern updated definition of popular sovereignty has to rest on the
people's ability to:

adopt its own basic law (constitution)

propose and adopt amendments to the basic law (constitu­tion)

If the people has these powers, it may institute any other changes it
desires. If it doesn't have these powers, however, it is unclear how it can be
legiti­mately said that the government rests on the supreme authority of the
people.

1.3 Popular sovereignty and direct democracy

Direct democracy means that the people directly decides all issues, instead
of delegating decisions to representative bodies like national legislatures;
while popular sovereignty means that the ultimate political authority is
deposited in the people. It follows that popular sove­reignty and direct demo­cracy
are closely related, but they are not exactly the same. Crudely simplified we
may say that popular sovereignty is political theory at a more basic level,
while direct or semi-direct democracy is its practical and pragmatic manifesta­tion.
Much of the discussion in the following chapters will therefore focus on (semi)
direct democracy, its implementation and effects.

As an aside I might add that it is possible to have direct or semi-direct
democracy without popular sovereignty. Ordinary people may be allowed to make
ordinary laws, but barred from changing the constitu­tion. Such a combination
was proposed in the United Kingdom around the turn of the century.

Similarly, it is possible to have popular sovereignty without direct
democracy in its purest form. This is the usual form of popular sovereignty; a
combination of representative bodies and ultimate popular authority. But it is
not possible to envision popular sovereignty without such a form of semi-direct
democracy.

Semi-direct democracy is a combination of direct democracy and representative
(also called indirect) democracy. A semi-direct system is characterized by the
people having delegated legislative powers to a parlia­ment or other
representative body, but having made this delegation revocable and limited. In
addition to the legislature there must also be a mechanism allowing for the
people to express its will directly.

For reasons of simplicity the rest of the book also employs the term direct
democracy to describe the direct parts of a semi-direct governmental system.

The proposed governmental system is a semi-direct democracy.

History of direct democracy in Europe

The history of popular sovereignty and direct legislation goes back a long
time. It can be found in some Greek city states of antiquity, and among the
Germanic tribes of northern Europe. At the time of the Greeks and the Romans,
the northern Europeans lived in small groups in sparsely populated areas. In
such societies, there are definite limits to op­pression. If people are
dissatisfied, they simply gather together in a little group to move on to
greener pastures elsewhere. This way of life naturally leads to an essential
equality in fundamental political decisions. After all, these groups or tribes
can only be kept together by voluntary compact. Thus the nature of frontier
society gave every young able-bodied individual a stake in fundamental
decisions.

Later, voting with your feet largely ceased being an option as the more
fertile parts of Europe became more densely populated and land became scarce.
The emergence of agriculture as the dominant food source reinforced the vul­nerability
of ordinary people. In an open landscape, with a sedentary lifestyle it became
harder to escape tyrants and their professional fighting men. Over time this
lack of effective countermeasures led to the emergence and growth of feudal
institutions.

In the less accessible parts of Scandinavia and Switzerland, however,
repression was more difficult to enforce, and the local landsgemeinde or things
survived for a considerable period. The original landsgemeinde were general
assemblies of all adult freemen that met once or twice a year to resolve
important issues. In Norway during the time of the Vikings (around 1000 a.d. and
even later) kings were still elected or approved at the local direct as­semblies,
and usually there was more than one contender. This multiplicity of choice acted
as a brake on royal ambition. For a long time there was no real central govern­ment,
and even after its creation, the geographical conditions were such that only
occasional super­vision of local communities could be accomp­lished. Even if
you did have a fall-out with the monarch, you could usually escape to other
Viking com­munities in Iceland, Normandy, Ireland, England, the Orkneys or the
Baltics with impunity.

The regional representative assemblies assumed many powers of the earlier
Norwegian direct assemblies beginning about 1000 a.d. However, these
representative assemblies had almost un-fettered legislative powers at least
until 1152 when the first serious attempts at national legal harmoni­zation
were made. The things or representative assemblies did survive until 1662, but
their powers steadily eroded with the increasing influence of the church, the
dwindling number and professionalisation of members, and the appointment by the
king of an ever-larger fraction of the total.

Even after the time of the Vikings, during the more powerful Danish-Norwegian
kings, central government enforcement was still difficult, and several tax
collectors failed to return to the capital. On the continent or in the flat
eastern part of Norway, the king or the feudal lord could employ heavily armed
profes­sional soldiers on the sedentary population. But heavy arms were of
little help in Switzerland, Iceland or in the Norwegian mountains with their
ample oppor­tunities for ambush and guerrilla warfare. Neither were there many
fields to burn as the popu­lation to a large extent relied on husbandry,
fishing and hunting for subsistence.

Thus by the Middle Ages the democratic traditions of citizens' assemblies
survived only in Iceland, in parts of Norway, possibly in parts of Sweden, and
in the original Swiss cantons. Scandinavia eventually succumbed to absolutism,
and direct democracy survived only in Swiss towns and cantons.

In Switzerland, 1291 marked the estab­lish­ment of a defensive league
between the original cantons of Uri, Schwyz and Un­terwalden directed towards
the feudal Habs­burgs. Swiss history as well is filled with much strife even
after this time. But the Swiss, contrary to the Scandinavians were never
conquered and never ruled by monarchs (with the exception of Napoleon).

It was the democratic traditions of Switzerland that later inspired
Jean-Jacques Rousseau. Rousseau's writings (e.g. The Social Contract, 1762) led to the adoption of the referendum
in the French Constitution of 1793, i.e. during the French Revolution. Though
this Constitution never came into operation, Napoleon used the referendum
occasionally. It also led to a revitali­zation in Switzer­land itself.

In 1848, the new Swiss federal constitution gave the Swiss people the power
to demand the complete revision of the Cons­titution through the election of
what was in effect a cons­titutional convention. In 1874 the Swiss used this
power to force the adoption of the legislative referendum (the right to approve
or reject ordinary federal legislation). Later, the threat of another
confrontation with the people led the Parliament to propose and pass itself the
consti­tutional ini­tiative (approved 1891).

Direct democracy in the United States

The basis of the democratic traditions of the British colonies in North
America is similar to that in Europe. The North American colonies were far
removed from the hub of power. They were protected from royal interference by
difficult communications and sheer physical distance. In this environment of
freemen evolved the New England town meeting.

The town meeting is an assembly of all adults (originally all male adults)
called every year to decide important local issues.

As in Switzerland several centuries earlier, the Americans resented central
taxation and interference with what they perceived to be internal American
affairs. As in Switzerland, geography hampered the military response of the
central power, and eventually secured the freedom of the American people and the
preservation of its democratic traditions. Thus as early as 1778, the
Massachusetts constitution was adopted by referendum. But this was hardly an
expression of popular sovereignty as I have defined it. Rather it was the people
vesting its ultimate authority in a new legislature according to the Lockean
vision. This becomes quite clear in the American Declaration of Independence of
July 4, 1776:

...."whenever any form of government becomes destructive of these ends
[life, liberty etc.], it is the right of the people to alter or to abolish it,
and to institute a new government,..."

Also, it should be noted that though the American Constitution’s Preamble
starts off with "We the people of the United States" ...... etc. There
is no way for the people to amend the Constitution. Popular sovereignty in its
more radical form was introduced later. Today, Delaware is the only state that
does not require popular approval for constitutional amendments, but the federal
Constitution has still not been updated.

The initiative, legislative referendums and other democratic reforms were
also postponed for another century. When these issues emerged or reemerged, it
was because of a maturing United States and a maturing political structure. The
drive westward was being completed and the opportunities for voting with your
feet internally in the United States were reduced. Simultaneously the political
structures of the older states were setting, while the ordinary man’s
entrepreneurial spirit especially in the West, was still not completely subdued.

It is to this entrepreneurial spirit we probably have to attribute the reform
movement born in the American Midwest at the turn of the century. Many of
these people had moved thousands of miles to get to a place that offered
individual opportunity and individual choice. They didn’t need or want a
corrupt or party ruled legislature to tell them what to do. In 1898 the reform
movement managed to get the initiative adopted in South Dakota as the first
state.

Direct legislation in the United States is still largely a western
phenomenon. Mostly it has been introduced within a few decades of the state's
erection, and before its political structure has become too entrenched. Though
several efforts have been made at the federal level, the entrenched interests of
pressure groups and party machines have so far successfully repulsed every
effort. The initiative also has been fiercely resisted in most of the eastern
states.

In Canada, direct legislation can be found in the province of Alberta and at
the local level.

1.4 Summary

This chapter defines popular sovereignty as the people's power to:

adopt
its own constitution

propose and adopt amendments to the constitution

Thus the practical manifestation of popular sovereignty is direct democracy.

A semi-direct democracy employs both a representative legislature as well as
direct legislation. Through­out the rest of the text the term "direct democracy" will be
used to describe the direct components of a semi-direct legislative system.